The sexual abuse scandals in the Catholic Church have brought to the fore a long-present credibility crisis for the Church’s leaders. However, the outrage of the faithful at the negligence of a relatively few bishops regarding pedophile priests will pale when an assessment is made of the civil accommodations, ecclesiastical privileges and civil rights that have been sacrificed in order to save a few mitres and diocesan coffers.

Hierarchically structured churches have traditionally operated with a great deal of autonomy. Civil governments in most common law countries have allowed church authorities a wide berth in regulating internal matters, especially the discipline of clergy. There are numerous stories in every chancery office of recalcitrant clergy who have been released to their bishop by the police or district attorney with confidence that the problem would be handled for the benefit and satisfaction of all involved. For the most part, this church-state relationship worked out well until the bishops became negligent. It helped maintain the integrity of the Church, which has always been recognized as a valuable institution for social well-being. It also protected the good name of the clergy in general, who although not in every instance paragons of virtue, do provide a standard and guidelines for a virtuous citizenry.

The revelations of the most egregious cases of abuse and negligence that came to light in Boston set off a media frenzy causing fear and anger among the faithful, who in turn pressured law enforcement officials to demand that bishops open their files on accused priests. After some hesitation all the bishops who were publicly confronted acquiesced, even in those states that had no reporting laws requiring them to inform the police of abuse allegations. At their recent semi-annual meeting, the bishops asserted that they will make this a matter of national policy. No doubt they did this on the advice of attorneys who worked to protect their clients and the diocesan assets. However, these attorneys were not sensitive to special accommodations, clerical privileges and civil rights that the Church has enjoyed and would lose by so acting. History provides us with the story of Thomas à Becket, Archbishop of Canterbury, who, when confronted with a like situation, gave his life to protect the prerogatives of the Church vis à vis the state when dealing with errant clergy. In 1164, King Henry II promulgated the Constitutions of Clarendon, which required that if the accused was brought to the King’s Court and found to be a cleric, the case was to be tried in an ecclesiastical court, and if found guilty there and punished by degradation (laicization), he was to be returned to the King’s Court for further punishment. Becket fought this article of the Constitutions not only for the principle of clerical privilege, i.e., of being disciplined by the Church, but also because he believed that this put a man in double jeopardy – punishing him twice for the same offense. Because of his refusal to accept the Constitutions, Becket was forced into exile for six years bereft of revenues, and upon his return, was eventually martyred. Every other bishop in England cooperated with the king. They are, however, still one bishop ahead of their contemporary American counterparts.

What exactly have the bishops forfeited by their actions? Although the First Amendment does not protect the criminal acts of the clergy from state prosecution, it has always been accepted that certain crimes could be addressed internally by the Church. Police and prosecutors often relied on Church officials to determine the guilt of a cleric and to prescribe appropriate punishment which ranged from efforts at reformation to suspension and, as a last resort, defrocking (laicization). The two former methods, often canonically enforced, were usually efficacious in restoring a priest to pastoral service while the latter penalty removed the dangerous priest from his office permanently. This process usually satisfied those who were offended as well as state officials because the problem was corrected without the loss of financial and social capital, and it also allowed the Church to fulfill the mandate of the Gospel to rehabilitate the sinner. In contrast to that approach, the current bishops have initiated a special lay review board to oversee the handling of alleged cases of clergy sexual abuse. In doing so, they have all but admitted their inability to govern the church – which is a charism of their office – and even more so, have acknowledged a lack of confidence in their members’ ability to self-govern. Ironically, by trying to recapture some of their lost credibility, the bishops have lost something else – a long-accepted arrangement between Church and state.

The concept of clerical privilege may seem archaic to our egalitarian culture. Yet, the dignity of persons – or at least the office a person held – traditionally allowed for special treatment of certain people. For instance, Americans have traditionally refrained from indicting a sitting president, and special immunities recognized by international law are granted to diplomats from foreign nations. These exceptions to the general rules of society enable a smooth functioning of the body politic while also allowing valuable symbols to stand despite the unworthiness of a particular human being who holds an office. Similarly, the clergy represents, at least theoretically, the best and most virtuous members of a community. To tear down this image not only demoralizes other members of the state but causes an unhealthy cynicism to grow against legitimate authority. By not protecting the names of priests who were listed in the diocesan files as alleged sex abusers, by releasing them to district attorneys or to the media, and in one archdiocese, by posting them on the Internet, the bishops have not only conceded a privilege but have caused the listed priests to be punished twice for the same alleged crime. By agreeing to report all accusations of child abuse by a priest – with innocence or guilt not determined – to the civil authorities, even in jurisdictions where no reporting laws exist, the bishops have given up that special bishop-priest-state relationship which is necessary for the health of the Church and society. In so doing, the bishops have encouraged the state to further degrade society by diminishing its regard for religion since the Church is often identified by its clergy.

Finally, there are long-standing legal rules, such as statutes of limitations, that the bishops have encouraged state legislators to abandon. Statutes of limitations exist both in canon law and civil law. They exist for good reasons, because over the years witnesses die, evidence is lost and memories fade. Even with revisions of the Dallas Sex Abuse Policy voted on at the bishops’ November meeting – which are geared to conform with the universal Code of Canon Law that extends the statute of limitations only until the accuser is 28 years old – the Vatican let it be known that it would be sympathetic to American requests to waive the statute when specifically asked. This once again sends out the message that the exception will make the rule. States, in order to quell the blood lust of the hysterical masses, will see this now as a mandate to enact legislation that will end civil statutes of limitations for certain sex crimes and may even “grandfather” these crimes into new legislation. While there is no doubt that law is culturally conditioned, it is also true that law made under duress is often bad law. Legislation eliminating statutes of limitation for sex crimes would be bad law because it would ignore the fundamental principles of justice, any satisfaction already made for crimes and the rehabilitation that may have already taken place. This approach flies in the face of the bishops’ own Pastoral Letter, Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice (2000). Megan’s Law (named after an eight-year-old girl in New Jersey who was sexually molested and murdered by a neighbor) is a case in point. The law requires sex offenders released from prison to make their whereabouts known and the communities in which they live to get that information out to the public. Civil liberties groups are now challenging the constitutionality of the law for imposing new penalties on old crimes, violating due process, putting the offenders in double jeopardy and violating their right to privacy. Note the bishops have violated all of the above civil rights by outing and reporting the names of accused priests. Their injudicious willingness to sacrifice civil rights for the sake of a hoped-for restoration of episcopal credibility only erodes further their position as church leaders and as advocates of justice for all.

The actions and policies the bishops have endorsed in Dallas and Washington to protect the young from pedophile priests reflect an overcompensating willingness on the bishops’ part to sacrifice certain accommodations, privileges and rights, endangering not only priests but the common good of all society. St. Thomas à Becket saw the danger in the Constitutions of Clarendon. In today’s crisis, if the few negligent bishops had resigned and others had refused to hand over names and risked jail for the sake of justice and the common good, perhaps they could have salvaged some credibility. As it stands now, they have lost the little esteem they had by circling their episcopal wagons in order to guard the tenure of a few of their brethren. They were not even willing to censure the bishops who transferred priests accused of sexual abuse from parish to parish. In adopting this approach, they have given to Caesar more influence than the state ever had, wanted to have or should have in Church affairs. In fact, the bishops’ giveaway may have set the stage for future state intrusions into Church life, such as finance and personnel matters. The Statement ofEpiscopal Commitment, as well as the dicta that led to its approval in Washington by a 246-7 vote with six abstentions, makes everybody the losers.